'FROM FRISBEES TO FLATULENCE': REGULATING GREENHOUSE GASES FROM CONCENTRATED ANIMAL FEEDING OPERATIONS UNDER THE CLEAN AIR ACT.

• Author: Elefritz, Danielle

1. INTRODUCTION 892 II. THE THREAT OF GLOBAL CLIMATE CHANGE: AN OVERVIEW 894 III. CONCENTRATED ANIMAL FEEDING OPERATIONS AND AIR POLLUTION 896 A. Concentrated Animal Feeding Operations 896 B. Air Pollution and Greenhouse Gas Pollution from Concentrated Animal Feeding Operations 897 IV. CLEAN AIR ACT OVERVIEW 899 A. National Ambient Air Quality Standards 900 B. State Implementation Plans 901 C New Source Review: Prevention of Significant Deterioration 902 V. PRESENT REGULATION OF CONCENTRATED ANIMAL FEEDING OPERATIONS UNDER THE CLEAN AIR ACT 903 A. Air Compliance Agreement 904 VI. REGULATION OF GREENHOUSE GASES UNDER THE CLEAN AIR ACT 906 VII. REGULATING GREENHOUSE GASES FROM CONCENTRATED ANIMAL FEEDING OPERATIONS UNDER THE CLEAN AIR ACT 909 VIII. CONCLUSION 912 I. INTRODUCTION

   The Intergovernmental Panel on Climate Change (IPCC), consisting of over 1,300 scientists internationally, (2) warned in its Fifth Assessment in 2014 that human influence is driving changes to the climate system that have already had widespread consequences on public health and the environment. (3) In 2014, the United Nations' Food and Agriculture Organization (FAO) reported that global greenhouse gas emissions from crop and livestock production totaled 5.3 billion tonnes in carbon dioxide equivalent (C02eq), a metric used to compare greenhouse gas emissions. (4) According to the United States Environmental Protection Agency (EPA), 24% of 2010 global greenhouse gas emissions originated from agriculture and deforestation as compared to 14% of emissions from the global transportation sector. (5) Moreover, greenhouse gas emissions from crop and livestock production are on the rise with FAO's 2014 emissions total signifying a nearly two-fold increase in emissions since 1961 (6) and a 14% increase since 2001-2014. (7)

   Public outcry for U.S. political action on climate change is high, as exemplified by the March for Science and Peoples Climate March, where together in 2017 more than 450,000 people marched for climate action in the nation's capital, across the country, and around the world. (8) Due to congressional gridlock, the federal government's best effort to regulate greenhouse gases to mitigate global climate change has been through the Clean Air Act's (9) (Act) mobile source program (10) and Prevention of Significant Deterioration (PSD) stationary source program. (11) Despite public outcry and administrative action on greenhouse gases--albeit under a former, more climate-responsive administration--domestic air pollution emissions from Concentrated Animal Feeding Operations (CAFOs) have been largely ignored. (12) Because the threat of climate change is grave, political action should be taken immediately to mitigate climate change through the reduction of greenhouse gas emissions from the largest emitting sectors, including the largely disregarded agricultural sector.

   This Comment stands for the premise that global climate change is real, human-caused, and a significant international threat that should be mitigated, in part, through the regulation of greenhouse gases from domestic CAFOs under the Act. Part II establishes that both the international scientific community and U.S. military community are in consensus that climate change is real, human-caused, and a significant global threat. Part III establishes that excessive air pollution, specifically greenhouse gas pollution, is emitted from CAFOs. Part IV provides an overview of the Act's National Ambient Air Quality Standards (NAAQS) and how they are implemented through State Implementation Plans (SIPs) as well as an overview of the Act's pertinent stationary source program, the New Source Review program's PSD program. Part V establishes the limited present regulation of CAFOs under the Act due largely to EPA's Air Compliance Agreement with most CAFOs, immunizing them from suit or enforcement under environmental statutes. Part VI provides an overview of the present regulation of greenhouse gases under the Act. Lastly, Part VII provides a promising avenue for regulating greenhouse gases from CAFOs under the Act and offers benefits and limitations to the proposal as well as recommendations for interested parties pursuing such regulation.

   Given the present political climate in the federal legislative and executive branches, this Comment calls for the regulation of greenhouse gases from CAFOs under the Act's PSD program as implemented by states through incorporation in their SIPs. This Comment focuses on this approach in particular as it is promising and little, if any, consideration has been given to it. This Comment recommends that interested parties seek regulation through effective lobbying of state legislatures and those state agencies responsible for revising their states' SIP as well as through comments on SIP revisions utilizing state notice and comment procedures. This Comment identifies and analyzes two possible obstacles to using this regulatory avenue: EPA's Air Compliance Agreement and the PSD program's prospective application.

2. THE THREAT OF GLOBAL CLIMATE CHANGE: AN OVERVIEW

   The United Nations Environmental Programme and World Meteorological Organization formed the IPCC in 1988 to provide scientific consensus on climate science for policy makers. (13) In 2014, the IPCC issued its Fifth Assessment in which it observed that "[h]uman influence on the climate system is clear, and recent anthropogenic emissions of greenhouse gases are the highest in history. Recent climate changes have had widespread impacts on human and natural systems." (14) On October 8, 2018, the IPCC issued its first special report in its Sixth Assessment cycle, calling for dramatic action to limit global climate change to 1.5 degrees Celsius. (15) Scientists are calling the report "life changing." (16)

   The Fifth Assessment stated that increased atmospheric concentrations of anthropogenic greenhouse gases--carbon dioxide, methane, and nitrous oxide--are "extremely likely to be the dominant cause of global warming since the mid-20th century. (17) Further, the Assessment stated that continued greenhouse gas emissions will very likely cause long-lasting climate impacts, including increased global surface temperature, longer and more frequent heat waves, more intense and more frequent extreme precipitation events, ocean warming and acidification, and global sea level rise. (18) "Many aspects of climate change and associated impacts will continue for centuries," according to the Assessment, "even if anthropogenic emissions of greenhouse gases are stopped." (19) The Assessment cited adaptation and mitigation as complementary strategies for decelerating and managing climate change. (20)

   In September 2016, the Center for Climate & Security Advisory Group, a voluntary and nonpartisan group consisting of forty-three U.S. senior military, national security, homeland security, and intelligence experts, (21) issued a statement stating that the climate trajectory "presents a [] significant risk to U.S. national security, and inaction is not a viable option." (22) The group, which includes former advisers to President Ronald Reagan and President George W. Bush, (23) urged the incoming president, then undetermined, to create a cabinet-level position to manage the impacts of climate change on national security. (24)

   Following the 2016 U.S. election of President Donald J. Trump, the group wrote to the president-elect calling on him to consider climate change a major threat to national security. (25) According to the Center for Climate & Security, "[s]tresses from climate change can increase the likelihood of international or civil conflict, state failure, mass migration, and instability in strategically significant areas around the world." President Trump, however, has hailed that climate change is a "hoax" perpetrated by the Chinese. (27) On Tuesday, March 21, 2017, President Trump signed an executive order curbing EPA's enforcement of climate regulations to instead prioritize creating and maintaining American jobs, (28) demonstrating that his priorities lie with industry interests, not climate mitigation. The executive order is just one of several actions by the Trump administration to dismantle U.S. climate policy. (29)

   Although the President has committed to climate inaction, the consensus of the international scientific community, as well as the U.S. military community, is that the threat of climate change is real, human-caused, and significant. The United States, as part of the international community, must act to mitigate greenhouse gas emissions and adapt to a warming world.

3. CONCENTRATED ANIMAL FEEDING OPERATIONS AND AIR POLLUTION

   1. Concentrated Animal Feeding Operations

      Today in the United States, most animal products for human consumption are produced in CAFOs, massive farm operations comprised of a single farmed animal species kept in confinement (30) and colloquially known as factory farms. (31) In that way, most of today's farms are markedly distinct from the romanticized, small, family-owned farms that dominated farming until the middle of the last century. (32) In the United States, "animal agriculture is a $100 billion dollar per year industry" (33) comprised of an estimated 10 billion land animals raised for meat, eggs, and milk annually, many of which are confined in the nation's approximately 18,800 CAFOs. (34) While CAFOs constitute just 5% of all Animal Feeding Operations in the United States, they produce more than half of all animals raised for consumption in the United States. (35)

      Congress first used the term "concentrated animal feeding operation" in 1972 when defining "point source" in the Clean Water Act (36) for the purposes of its National Pollutant Discharge Elimination System (37) In 1976, EPA revised its regulations to include a definition for CAFO. (38) The term's definition was further revised by the agency in its 2003 regulations. (39) To meet the definitional requirements...